Unpacking the new FCC TCPA revocation of consent rule

In our latest webinar “Don’t panic, prepare: Navigating the undefined world of robocalls and robotexts”, we delved into the evolving landscape of call center technology with attorney Puja Amin, Partner at Troutman Amin, LLP and TCPA expert Tammy Glover Fowler, Compliance Officer at Convoso.

Our panel of industry experts discussed key strategies to ensure compliance with the FCC’s latest TCPA updates, touching on a particularly relevant topic: Revocation of consent.

In February 2024, the FCC approved a significant update to the TCPA focused on expanding consumers’ ability to revoke consent to receive calls and texts. According to attorney Puja Amin, “Everyone’s very focused on the 1 to 1 consent rules, which they should be and they ought to be. But these new revocation rules, they are just massive, and I’m not hearing enough folks talk about this and that’s scary.”

For this reason, we would like to dive deeper into this matter to offer a better understanding of the new updates.

DISCLAIMER/UPDATE: Since our Feb 28, 2024 webinar, the FCC has published their update to the Federal Register (March 5, 2024) that established a start date of the rule changes (April 4, 2024) regarding “revocation of consent” from robocalls. But the April 4, 2024 start date will only pertain to the parts regarding the one-time text message sent to confirm the revocation request. It’s important to note that the other significant amendments, including those concerning the 10 business day period and what constitutes “reasonable means” are delayed “indefinitely”. The potential implementation dates for compliance on those requirements now fall into the “stay tuned/to be determined” status in the weeks and months ahead.

An overview of the new TCPA revocation of consent rule

The 10 business day window

As Puja Amin explains, a notable shift in the rule is the introduction of a 10 business day window for companies to process and honor a DNC request received from an individual. Previously, the timeframe within which a company had to comply with such requests wasn’t legally defined. Now, failure to adhere to this rule could prompt litigation for companies that lag, processing requests on the 11th business day or after.

As predicted by Puja, “a lot of folks aren’t gonna have that much difficulty.” She expects that many companies will find an easy solution for this – likely a simple adjustment in their communication and internal DNC system’s settings. The challenge, however, may arise when coordinating internal DNC requests across multiple channels, call centers or with external partners. Although initially a shorter period like 24 to 48 hours was considered by the FCC, the settled upon 10 business day time frame provides a more practicable window for compliance for businesses.

According to Compliance Officer Tammy Glover Fowler, “in the day and age we’re in now, you can really do it in 10 business days.”

TCPA revocation of consent: “Stop” immediately response

The updated FCC rule establishes that a consumer’s use of the word “stop” in a text message response to a marketing message mandates a full stop – no further calls or texts can be sent. Even more imperative to note is that a “stop” response to any informational message revokes the ability to send texts or call for any reason, even in emergencies.

Puja expects this will have significant implications for those businesses that rely on sending automated messages to stay connected with their customers.

Consumers can revoke consent with any reasonable mean

The revocation of consent rule outlined methods for withdrawing consent to text message communications. Notably, it established a standard set of words like “stop,” “revoke,” and “opt-out” that consumers can use. However, the FCC opened the door to other reasonable terms for opting out, though it stopped short of providing an exhaustive list.

As Puja explains, if an exasperated consumer replies “Enough!” This too could be interpreted as a desire to unsubscribe. It’s crucial for companies and service providers to interpret these signals intelligently or to collaborate with platforms capable of recognizing a variety of withdrawal requests.

As Puja says, “It’s amazing how many times I still hear that folks only have operationalized the word ‘stop’ for a DNC request.” The FCC’s decision to highlight a handful of terms – even though they refrained from specifying every acceptable word for the DNC – should catch the attention of businesses.

Can anyone revoke TCPA consent?

Yes, under the TCPA, any adult person who has previously provided consent to be contacted has the right to revoke TCPA consent at any time and by any reasonable means. If a consumer no longer wishes to receive calls or texts from a business, they can inform the business of their decision to revoke consent, and the business must honor this request.

This applies to all types of calls and texts governed by the TCPA, including telemarketing, automated calls, prerecorded messages, and texts sent using an automated system.

Overall, TCPA consent is not permanent, and consumers retain the right to withdraw it at any time, which is a crucial part of the act’s consumer protection measures.

TCPA revocation of consent requires immediate change

Once a consumer revokes TCPA consent, companies are legally required to immediately stop all telemarketing and automated communications, including marketing texts, calls, and prerecorded messages. Here’s what companies need to do to ensure compliance:

1. Cease communications immediately. As soon as a consumer revokes consent, the company must stop sending marketing texts or making automated calls to that consumer. Continuing to contact them can result in TCPA violations, which can carry significant fines, penalties, and litigation.
2. Update internal records. Companies should promptly update their CRM or contact management systems to reflect the consumer’s revocation of consent. This prevents accidental future contacts and keeps records clear in case of an audit or legal dispute.
3. Implement a real-time consent management system. A system that processes opt-outs and revocations in real time is essential to avoid delays. Automated systems should be designed to recognize and immediately act on any opt-out requests, particularly for text messages and automated calls.
4. Acknowledge revocation, if appropriate. While not always necessary, acknowledging receipt of the revocation can reassure consumers that their request has been processed. For example, a final message might say, “You have been unsubscribed from further communications.”
5. Train staff on TCPA compliance. Companies should regularly train employees on TCPA compliance, especially those involved in telemarketing, customer service, and CRM management, so they understand the importance of honoring consent revocations immediately.
6. Maintain a do-not-contact list. Consumers who have revoked consent should be added to an internal do-not-contact list, ensuring they are excluded from future marketing campaigns. This is particularly important for companies that outsource marketing activities to third parties, as those vendors must also comply with revocation requests.

By immediately stopping marketing texts and automated calls after a TCPA revocation, companies not only comply with the law but also build trust and respect for consumer preferences.

The importance of a TCPA revoke consent disclosure

Providing a clear and conspicuous TCPA revoke consent disclosure is essential for businesses to comply with the TCPA and to maintain transparent communication with consumers.

This disclosure should inform consumers of their right to revoke consent for marketing communications and explain how they can do so. Here’s why it’s important:

• Consumers should be able to revoke consent easily and by any reasonable means. A clear disclosure ensures that companies meet this requirement, reducing the risk of non-compliance, potential fines, and litigation.
• When consumers know they have control over communications, they are more likely to feel respected and trust the company. Transparency around revocation options can improve brand reputation and customer loyalty.
• Providing a clear revocation disclosure minimizes the likelihood of misunderstandings that could lead to complaints, lawsuits, or TCPA violations. This helps protect the company from costly legal consequences.

Key elements of a TCPA revoke consent disclosure

A well-crafted TCPA revoke consent disclosure should include the following information:

1. Right to revoke: Clearly state that the consumer has the right to revoke their consent for receiving marketing communications at any time.
2. Instructions on how to revoke: Provide simple, direct instructions on how consumers can opt out, including a variety of methods (e.g., replying “STOP” to a text message, calling a customer service number, or filling out an online form). Multiple options ensure it’s accessible and easy for consumers.
3. Immediate cessation of communications: Assure the consumer that revocation will result in the immediate cessation of all marketing texts, automated calls, and any other forms of communication under the TCPA.
4. Contact information: Include the company’s contact details (like a phone number or email address) for any questions about the revocation process, helping to further clarify the process and make it more convenient.
5. Confirmation of revocation (optional but recommended): Let consumers know they will receive a confirmation once their revocation request is processed. This reinforces transparency and can increase consumer confidence in the process.

By providing a clear and conspicuous TCPA revoke consent disclosure, companies empower consumers to manage their communications, reduce the risk of non-compliance, and demonstrate a commitment to consumer rights and transparency.

The implications of revoke TCPA consent requests for companies

As Puja highlights, companies now face the imperative to rethink how “stop” opt-out notifications are crafted. They’ll need to clarify – and likely get creative – about what exactly a “stop” message opts consumers out from. It’s a delicate balance to maintain, ensuring compliance while still meeting customers’ needs and expectations.

Furthermore, the FCC’s ruling clarifies that a one-time follow-up text for clarification is permissible. Yet if the consumer doesn’t engage with this follow-up, businesses must assume a global opt-out has been requested. Notably, a swift five-minute response window is allowed for response clarification text messages that can be sent.

Lastly, for entities utilizing messaging capabilities without direct reply functions, disclosure on alternative opt-out methods is now essential – be it a web link or instructions for a different communication channel.

Things to look out for regarding TCPA revoke consent requests

As Tammy Glover Fowler explains, many of us unwittingly agree to receive communications from our bank – for example – when we share our contact details. This is known as express consent. However, it’s essential to understand that there’s a distinction between express consent – granted tacitly – and express written consent, which is given more deliberately. With the integration of opt-out options in informational messages, it’s crucial to stay vigilant.

After all, as a consumer, you wouldn’t want to miss out on important fraud alerts simply because you opted out without a second thought. It pays to be judicious about the alerts you choose to receive – knowledge and attention here are key.

If you’d like to refresh your memory on the difference between express consent and express written consent, take a look at this blog post.

When is the TCPA revocation of consent rule expected to be enforced?

“I’ve been seeing a lot of confusion around this,” says Puja, coupled with misleading commentary from different articles and legal professionals. 

She clarifies that usually amendments are mandated to take effect within 30 days following publication in the Federal Register. However, the enforcement of the 10-day revocation rule is set to kick in six months after the FCC has finalized its review.

As Puja goes on to elaborate, it appears that the FCC is well aware a six-month period is essential to carry out all the required adaptations. Once the FCC concludes its assessment – something Puja is anticipating but hasn’t received notification for as yet – the six-month countdown begins.

In summary

The new FCC revocation rule heightens the urgency of processing DNC requests and stipulates clear guidelines when consumers issue a “stop” response. It’s a move towards clearer consumer rights and requires businesses to adapt swiftly to respect customer preferences while mitigating potential legal repercussions.

According to our Director of Privacy, Security, and Compliance, Benjamin Farrar, “It’s an opportunity to take a look at your business models and see where you could improve, provide more transparency, and think from the consumer.”

As Puja and Tammy both highlight, organizations will likely need to pivot, crafting clear and comprehensive opt-out instructions while ensuring all systems are calibrated to meet these new standards. It’s a significant change, but one that ultimately benefits the transparency and respect between businesses and consumers.

Stay ahead of the curve with ActiveProspect’s guidance on the latest TCPA guidelines. Watch our full episode and sign up for our insightful FCC webinar series by clicking here.

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